Rajasthan High Court - Jodhpur
Durga Bhati vs State Of Rajasthan And Ors. ... on 29 May, 2023
Author: Nupur Bhati
Bench: Nupur Bhati
[2023/RJJD/017068]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
(1) S.B. Civil Writ Petition No. 14741/2017
Smt. Durga Bhati Wife Of Shri Pukh Raj, Resident Of - Infront Of
Raja Dan Mention, Jalori Bari, Jodhpur.
----Petitioner
Versus
1. State Of Rajasthan, Through The Secretary, Department
Of Revenue Secretariat, Jaipur.
2. Inspector General Stamps, Panjiyan Bhawan, Ajmer.
3. Collector Stamps, Jodhpur Circle, Jodhpur.
4. Sub Registrar, Fourth Jodhpur.
----Respondents
Connected With
(2) S.B. Civil Writ Petition No. 14740/2017
Smt. Pramila Bhati Wife Of Shri Ramesh, Resident Of - 01-B,
Panji Ka Bera, Pal Road, Jodhpur.
----Petitioner
Versus
1. State Of Rajasthan, Through The Secretary, Department
Of Revenue Secretariat, Jaipur.
2. Inspector General Stamps, Panjiyan Bhawan, Ajmer.
3. Collector Stamps, Jodhpur Circle, Jodhpur.
4. Sub Registrar, Fourth Jodhpur.
----Respondents
For Petitioner(s) : Mr. C.P. Soni
For Respondent(s) : Ms. Pratyushi Mehta, associate to
Mr. Sandeep Shah, Sr. Advocate-
cum-AAG.
HON'BLE DR. JUSTICE NUPUR BHATI
JUDGMENT
Reserved on :- 24/05/2023
Pronounced on:- 29/05/2023
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1. Since common question of facts and law are involved in both these writ petitions, therefore, these writ petitions are decided by this common order.
2. In SBCWP No.14741/2017 (Durga Bhati vs. State & Ors.), the following prayers were made:-
"1. That the notice impugned Annexure-3 dated 12.07.2017 issued by respondent No.4, order passed by Collector Stamp, Jodhpur Annexure-6 dated 05.07.2017 Stamp Case No.605/2017, may kindlyi be quashed and set aside.
2. That the respondent may further be directed to not to recover any amount of stamp duty or penalty as has been levied on the petitioner in furtherance of the notice Annexure-2 and order impugned Annexure-6.
In SBCWP No.14740/2017 (Smt. Pramila Vs. State & Ors.), following prayers were made:-
"1. That the notice impugned Annexure-3 dated 12.04.2017 issued by respondent No.4, order passed by Collector, Stamp, Jodhpur Annexure-6 dated 5.7.2017 Stamp Case No.604/2017, may kindly be quashed and set aside.
2. That the respondent may further be directed to not to recover any stamp duty or penalty as has been levied on the petitioner in furtherance of the notice Annexure-3 and order impugned Annexure-6."
3. The brief facts giving rise to the present controversy are that the petitioners-Smt. Durga Bhati and Smt. Pramila Bhati, purchased Plot Nos.119 and 86 respectively in Khasra No.380 of Village Pal and after purchasing the same, registry was got done on 30.12.2016 after site inspection and registered sale-deed was granted in favour of the petitioners. Thereafter, in view of the audit objection of the authorities concerned, vide audit report dated 27.03.2017, the Inspector General (Stamps), initiated proceedings under Section 51 of the Rajasthan Stamps Act, 1988 (Downloaded on 12/11/2023 at 01:06:27 AM) [2023/RJJD/017068] (3 of 9) [CW-14741/2017] (hereinafter referred to as 'the Act of 1988') against the petitioners and a notice Annexure-3 was issued to the petitioners to which, the petitioners filed reply on 12.06.2017. A copy of DLC rate (Annes.5) was supplied by the Collector (Stamps), Jodhpur Circle, Jodhpur. Thereafter, vide order dated 05.07.2017 (Annexure-6) while imposing penalty to the tune of Rs.39,140/- and 78,270/- respectively with penalty, surcharge and interest against the petitioners, impounded their documents. Being aggrieved thereof, the petitioners have preferred these writ petitions.
4. Learned counsel Mr. C.P. Soni, representing the petitioners submitted that the respondents authorities have passed the impugned orders in a lackadaisical manner. The Chief Auditor General from the Office of Inspector General (Stamps), Ajmer, while submitting his report on 01.03.2017, found the document to be insufficiently stamped without assigning any reason and also, without providing any opportunity of hearing to the petitioners.
5. Learned counsel for the petitioners further submitted that while making a reference to the Collector, the Registering Authority, before or after registering the document, is required to send the document in original to the Collector for determining the market value and also for making assessment of the duty required to be charged. Once, a document is registered and returned to the party concerned, then, the document in its original, cannot be sent to the Collector for exercising powers to determine and assess the stamp duty. In the present case, the original documents were returned to the petitioners after registration and the petitioners were having possession over the original (Downloaded on 12/11/2023 at 01:06:27 AM) [2023/RJJD/017068] (4 of 9) [CW-14741/2017] documents, therefore, the Registering Authority was not at all in a position to send the same to the Collector as prescribed under Section 47-A(1) of the Act of 1988.
6. Learned counsel for the petitioners further submitted that the petitioners were not afforded any opportunity of hearing and thus, proceedings under Section 55 of the Act of 1988, have been initiated in violation of principles of natural justice. He further submitted that as per the provisions of Section 55 of the Rajasthan Stamp Act, when on receipt of information or suo moto, if the Collector is issuing notice to the party, then, he is liable to determine the value under Section 30 of the Act of 1988.
7. Learned counsel for the petitioners also submitted that shelter of Rule 65 of the Rajasthan Stamp Rules, 2004, taken by the Inspector General (Stamp), is not at all applicable to the case at hand. In this regard, he submitted that this rule governs the provisions of Section 55 of the Act of 1988 which is a statute governing the procedure of Section 51 of the Act of 1988. The case at hand may be covered under the provisions of Section 51 of the Act of 1988 and both the provisions cannot be invoked simultaneously without prior information or notice under the aforesaid provisions and when no notice under Section 51 of the Act of 1988 has been issued to the petitioners, then, in these circumstances, proceedings initiated against the petitioners are highly arbitrary on the face of the record.
8. In support of his contentions, learned counsel representing the petitioners placed reliance upon the catena of judgments which reads as follows:-
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(a) Harbanslal Sahnia & Anr. Vs. Indian Oil Corporation Ltd. & Ors. reported in (2003) 2 SCC 107.
(b) Bhairu Bux Vs. State and Ors., reported in 2014 LawSuit(Raj) 2171.
(c) Assistant Commissioner Special Circle, Bhilwara Vs. Rural Engineering Company Pvt. Ltd., reported in 2017 LawSuit(Raj) 201.
(d) Bhawal Synthetics Ltd. Vs. State of Rajasthan & Ors., reported in 2013 LawSuit(Raj) 2126.
(e) Shankar Lal & Ors. Vs. State of Rajasthan & Ors., (SB Civil Writ Petition No.568/1993), reported in 2006 (2) RDD 814 (Raj).
9. On the other hand, Ms. Pratyushi Mehta, Advocate, associate to Mr. Sandeep Shah, learned Senior Counsel-cum-AAG representing the respondents, vehemently and fervently opposed the submissions advanced by the petitioners' counsel and raised a preliminary objection regarding maintainability of the present writ petitions in light of the alternative remedy available to them under Section 65(1) of the Act of 1988.
10. Learned counsel for the respondents further submitted that it is not the case of the petitioners that the impugned order has been passed without jurisdiction or infringes the principles of natural justice. A perusal of reply dated 12.06.2017, reveals that the same was filed in response to a notice issued to the petitioners under Section 51 of the Act of 1988. Further, a perusal of the impugned order reveals that the petitioners' counsel was heard prior to passing of the order and was in fact, passed in the presence of the petitioners' counsel and thus, this Hon'ble Court (Downloaded on 12/11/2023 at 01:06:27 AM) [2023/RJJD/017068] (6 of 9) [CW-14741/2017] may not invoke its extraordinary writ jurisdiction under Article 226 of the Constitution of India in the matters, as there is alternative remedy is available, specifically, when the order passed by Collector (Stamps) was under challenge. Reliance has been upon the Division Bench judgment passed in D.B.S.A.W. No.619/2022 [Param Prasad Charitable Trust Vs. State of Rajasthan & Ors.], in which the Division Bench affirmed the judgment of the learned Single Judge passed in SBCWP No.4065/2010 by which, the writ petition of the petitioner was dismissed on account of availability of alternative remedy, though the matter was at the stage of final hearing. Learned counsel for the respondents also placed reliance upon the judgment dated 18.01.2022 in the case of Fine Mineral Industry Vs. State of Rajasthan & Ors. passed in SBCWP No.7943/2007 whereby, the learned Single Judge dismissed the writ petition by affording liberty to the petitioner for availing alternate remedy.
11. Learned counsel for the respondents further submitted that in these writ petitions, where the dispute is regarding the valuation of subject instrument, may be dismissed by this Hon'ble Court on account of availability of alternatve remedy. As far as the issue regarding averment of the petitioners in regard to no notice under Section 51 being issued is concerned, same is completely false on the face of it. In this regard, it was submitted that in the reply dated 12.06.2017, was in response to notice under Section 51 of the Act of 1988 and the same also bears a reference of the same. Therefore, the averment of the petitioners is false and unsustainable.
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12. Learned counsel for the respondents also submitted that in relation to the fervent contentions raised by the petitioners' counsel in regard to illegality of the impugned order on the ground of Collector (Stamps) not having the original subject instrument, it was submitted that calling for and impounding of the original instrument by the Collector (Stamps) is discretionary and not mandatory. Proceedings under Section 51 of the Act of 1988 can be initiated upon inspection of copies of the instrument as well and if by assuming for an instance that the above statement is true, then the same is technical in nature and curable upon impounding of the document and the same does not discharge the petitioners of their liability to pay deficit stamp duty and penalty. In support of her submissions, learned counsel for the respondents placed reliance upon the judgments passed by this Court in the case of Narendra Sharma Vs. State of Rajasthan & Ors. with other connected matters, passed in SBCWP No.14058/2019.
13. I have given my thoughtful consideration to the submissions advanced at Bar by the learned counsel for the parties, perused the impugned orders and the material available on record.
14. With regard to the submission made by learned counsel for the petitioners that stamp duty cannot be re-determined in absence of the original documents, learned counsel for the respondents placed reliance upon the judgment of a Coordinate Bench of this Court in the case of Narendra Sharma (supra), wherein it was observed as under:-
"27. But then, sub-section (4) equally empowers the registering authorities, being public officers to make a (Downloaded on 12/11/2023 at 01:06:27 AM) [2023/RJJD/017068] (8 of 9) [CW-14741/2017] reference. It is noteworthy that sub-section (2) of Section 51 does not use the expression - 'reference', whereas sub- section (4) does. Hence, a registering authority, without impounding the documents and having original with him can make a reference in exercise of power under sub- section (4) of Section 51. Therefore, the sheet-anchor of the argument advanced by the petitioner that, in absence of original document neither reference can be made, nor the Collector (Stamps) can determine the duty, does not hold much water."
15. In regard to the submission of violation of the principles of natural justice made by the learned counsel for the petitioners, it is evident from the record that notices (Annex.3) were issued to the petitioners and replies were filed by the petitioners and the impugned order has been passed in the presence of the counsel for the petitioners. Thus, it cannot be said that there was any violation of principles of natural justice.
16. Learned counsel for the respondents raised a preliminary objection regarding maintainability of the present writ petitions in view of the availability of alternative remedy under Section 65(1) of the Act of 1998, which reads as under:-
"65. Revision by the Chief Controlling Revenue Authority--
(1) Any person aggrieved by an order made by the Inspector General of Stamp or Collector under Chapter IV and V and under clause (a) of the first provision to section 29 and under section 35 of the Act, may within 90 days from the date of order, apply to the Chief Controlling Revenue Authority for revision of such order:
Provided that the Inspector General of Stamp or any other officer authorised specially or generally by the Inspector General of Stamp may, if aggrieved by any order referred to in this sub-section, may file revision before Chief Controlling Revenue Authority within 180 days from the date of the communication of the order.
Provided further that no revision application shall be entertained unless it is accompanied by a satisfactory proof (Downloaded on 12/11/2023 at 01:06:27 AM) [2023/RJJD/017068] (9 of 9) [CW-14741/2017] of the payment of twenty five percent of the recoverable amount."
17. Learned counsel placed reliance upon the judgment of a Coordinate Bench of this Court in the case of M/s. Fine Mineral Industry (supra), in which, it was observed as under:-
"30. Keeping in mind the facts and circumstances of the case, and in light of the fact that a statutory alternate remedy is available to the petitioner, and deriving strength from the decisions rendered by the Hon'ble Apx Court in Genpact (supra) and Ansal Housing (supra), this Court does not find it a fit case for making any interference. "
18. As an upshot of the discussion made hereinabove, I do not find these writ petitions maintainable on the basis of the availability of alternative remedy under Section 65(1) of the Act of 1998. Thus, without entering into the merits of the case, the writ petitions are dismissed on the ground of alternative remedy being available to the petitioners. However, the petitioners shall be at liberty to avail the alternative remedy available to them and approach the concerned authority for redressal of their grievance.
19. Stay applications and all pending applications, if any, also stand disposed of.
(DR. NUPUR BHATI),J /skm/-
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